At an omnibus hearing held before
trial, defendant moved to suppress all evidence obtained in the August 10, 2004,
incident on the ground that that evidence was the product of an unlawful stop
and an unlawful search of defendant's pocket.� The state asserted various
theories to explain why the evidence was lawfully obtained, including its
present theory that the search of defendant's pocket was justified under the
"officer safety" doctrine.

In support of its arguments, the
state offered Babb's testimony.� Babb described the encounter with defendant that
we have summarized above.� He also testified about his thinking at the time.� He
stated that, in the course of the encounter, he formulated a belief that
defendant had one of three things in his pocket -- stolen property from the
burglary, a weapon, or controlled substances.� He also testified that, to him, defendant's
actions raised officer safety concerns:

"Q:� When you were attempting to pat [defendant] down,
and he was moving away, were you concerned about that?

"A:� I was very concerned about that.

"Q:� Why?

"A:� Because, again, he's hiding something from me.�
And I don't know if this is a weapon, or what he's got there.� But, if I'm
patting someone down, and they're pulling away from me and not following
instructions, then that's an officer-safety risk."�

Babb later stated, more explicitly, that he was concerned
that defendant "might possibly have a weapon." �Babb did not provide
any explanation as to why, after defendant was handcuffed, he looked directly
into defendant's pocket, rather than completing the patdown.

At the close of the hearing, the
court orally announced that it found Babb's testimony to be credible, thus suggesting
that it was adopting Babb's testimony as fact.� The court also announced certain
legal conclusions, including (1) that, although the initial encounter between
defendant and Babb was "conversational," it ultimately became a stop;
(2) that, in light of the circumstances of the encounter, i.e., it
occurred at 4:00 a.m., in close proximity to an active burglar alarm, defendant
was observed walking away from the area of a ringing burglar alarm, and defendant
was wearing dark clothes and appeared to be the only person on the street, the
stop was supported by a reasonable suspicion that defendant had committed a
crime; (3) that Babb believed that defendant might have a weapon and might pose
a safety risk and, in light of defendant's appearance and actions, Babb's
belief was reasonable or, at least, should not be "second guessed"; and
(4) that, even after defendant was handcuffed, Babb still could have concerns about
what was in the pocket and therefore was entitled to "conduct some
additional looks in a pocket like that."� In short, the court concluded
that the direct search of defendant's pocket was lawful and denied defendant's motion
to suppress.� The case proceeded to trial and defendant was found guilty of and
sentenced for possession of a controlled substance.

Before this court, the state argues
that the Court of Appeals applied the officer safety doctrine too narrowly --
that it erroneously concluded that the state must show that the circumstances required
the particular safety measure be taken and that no less intrusive measure
would have been adequate.� The state contends that the proper focus of an officer
safety inquiry is on whether the action taken was "reasonable" under
the totality of the circumstances as they appeared to the police officer at the
time that the police officer decided to act.� The state contends that, from
that perspective, Babb's decision in the present case to look directly into
defendant's pocket was reasonable.� Defendant responds that the Court of
Appeals' majority did apply a "reasonable under the totality of the
circumstances" test and properly concluded that the particular action at
issue -- looking directly into defendant's pocket -- went beyond what was reasonable
under the circumstances.

Defendant relies, instead, on the
prohibition on unreasonable searches and seizures in Article I, section 9, of the
Oregon Constitution, which provides:

"No law shall violate the right of the people to be
secure in their persons, houses, papers and effects, against unreasonable
search, or seizure; and no warrant shall issue but upon probable cause,
supported by oath, or affirmation, and particularly describing the place to be
searched, and the person or thing to be seized."

It is well settled under that provision that a warrant normally
is a prerequisite to any search and that, as a general rule, warrantless
searches are per se unreasonable unless they fall within one or another of
the established exceptions to the warrant requirement.� See, e.g., State
v. Davis, 295 Or 227, 237, 666 P2d 802 (1983) (so stating).

The parties appear to agree that the
relevant exception in the present case is the "officer safety"
doctrine described in Bates. �In Bates, this court held that:

"Article I, section 9, of the Oregon Constitution, does
not forbid an officer to take reasonable steps to protect himself or others if,
during the course of a lawful encounter with a citizen, the officer develops a
reasonable suspicion, based upon specific and articulable facts, that the
citizen might pose an immediate threat of serious physical injury to the
officer or to others then present."

304 Or at 524.� Significantly,the court in Bates
stressed that officer safety measures should be examined with considerable
deference to the judgments of the police officers on the scene:�

"As we noted in [State v.] Riley, [240 Or
521, 525, 402 P2d 741 (1965)], it is not our function to uncharitably
second-guess an officer's judgment.� A police officer in the field frequently
must make life-or-death decisions in a matter of seconds.� There may be little
or no time in which to weigh the magnitude of a potential safety risk against
the intrusiveness of protective measures.� An officer must be allowed
considerable latitude to take safety precautions in such situations.� Our
inquiry therefore is limited to whether the precautions taken were reasonable
under the circumstances as they reasonably appeared at the time that the
decision was made."

Id. at 524-25.

In its arguments about this case, the
state focuses on the repeated theme of "reasonableness" in the
foregoing quotations from Bates.� It argues that the scrutiny that the
Court of Appeals applied to the events in the present case and, particularly, the
court's suggestion that the state had failed to demonstrate that the
circumstances required something more than a patdown for weapons, is
incompatible with the doctrine's "reasonableness" standard.� The
state explains:

"Reasonableness is rarely a black-or-white concept; it
typically is a fluid one that depends on a variety of facts and is not
conducive to a one-size-fits-all approach.� Within the range of 'reasonable'
choices are some that may be less intrusive than others.� Thus, merely because
one particular action may be reasonable, it does not follow that a different option
is therefore unreasonable."

The state goes on to suggest that, once an officer develops a
reasonable suspicion that a person might present a safety risk, any action chosen
from within a whole spectrum of "reasonable options" is permissible
-- including direct examination of the contents of a person's pocket, as
occurred in the present case.

The state's general description of
the concept of reasonableness is unobjectionable.� In fact, this court often has
stated that police officers must be allowed "considerable latitude"
to take protective measures when they reasonably feel threatened.� See, e.g.,
Bates, 304 Or at 524-25; State v. Foster, ___ Or ___, ___, ___
P3d ___ (slip op at 10) (decided this date) (court will not second-guess reasonable
decisions made under pressure by police).� However, the state's suggestion that
a "whole spectrum" of variously intrusive measures will be "reasonable"
in any circumstance does little to advance the reasonableness inquiry and, in
fact, could have the effect of short-circuiting any serious inquiry into the
reasonableness of the specific protective measure that is at issue.� The question
that courts must confront in these circumstances is whether the particular
step taken by the police was one that was reasonable under the particular
circumstances, not whether that step was within the range of reasonable
responses to officer safety concerns in general.

That does not mean that evidence
obtained as a by-product of officer safety measures must be suppressed unless
the state demonstrates that the police used the "least intrusive"
means that were available to protect themselves.� SeeFoster, ___
Or at ___ (slip op at 11-12) (rejecting that "least intrusive" or
"least restrictive alternative" rationale).� Neither does it mean
that the state must demonstrate that the circumstances "required" the
particular response that the officer's chose.� Id. �The idea of
proportionality does not require pinpoint accuracy; it is perfectly consistent
with the latitude that we have afforded to police and, more generally, with this
court's recognition that "reasonable" conduct can encompass a range
of choices.

With the foregoing considerations
respecting the principle of proportionality in mind, we consider the particular
protective measure that Babb took in this case -- a direct examination of the
contents of defendant's pocket -- which the state contends was a reasonable one
under the totality of the circumstances.

The state begins with the proposition
that, when Babb first encountered defendant, he had a reasonable suspicion that
defendant was involved in a crime.� In that regard, the state points to
evidence that Babb was responding to a 4:00 a.m. burglar alarm, that defendant was
walking away from the source of the alarm, that he was wearing dark clothes,
that he was sweating profusely and grew increasingly nervous during the course
of the encounter, that his pockets were visibly bulging, and that, when asked
about the contents of his pockets, he furtively and selectively removed items.�
The state also points to Babb's testimony that he knew that defendant was
hiding something and that he was "very concerned" that it might be a
weapon.� The state concludes that, at that point, Babb was justified in
detaining defendant to investigate further and also was justified in
"protect[ing] his safety during the potentially volatile encounter by
determining whether defendant was carrying a weapon."

We agree. �The question, however, is
whether the measures that Babb took to protect his safety were reasonable under
the circumstances, when "reasonableness" incorporates both the idea
that police are afforded latitude in protecting themselves from danger and the
idea that the measures used must be reasonably proportionate to the perceived
threat.

Initially, Babb tried to conduct a
patdown of defendant's exterior clothing for weapons.� However, when defendant twice
turned away, Babb and his associate handcuffed defendant, opened his pocket,
and visually inspected the pocket's contents.� Notably, Babb's initial patdown
approach was the type of limited search that this court generally has approved
when officer safety concerns arise in the course of a lawful police stop.� See,
e.g., State v. Miglavs, 337 Or 1, 14, 90 P3d 607 (2004)
(illustrating proposition), State v. Stanley, 325 Or 239, 244-46, 935
P2d 1202 (1997) (same).� Although a patdown is an intrusion (indeed, it is a
search), it normally is sufficient to identify those objects that are relevant
to officer safety concerns while leaving other information and objects relatively
private.�

The state suggests that the evidence
shows that Babb was dealing with something more than ordinary concerns
about the possible presence of a weapon. �It points to the testimony that
defendant turned his body away each time Babb attempted to patdown his pockets,
even after Babb instructed him to stop moving.�� Based on that testimony, the
state contends that "defendant's own actions, and his refusal to cooperate
with lawful orders, thus converted an already risky situation into an
exceedingly dangerous confrontation."

We do not agree that defendant's failure
to cooperate turned this encounter into one that justified a more intensive
search than ordinarily would have been permissible.� Certainly, defendant actively
and repeatedly thwarted Babb's attempts to check him for the presence of a
weapon, but failing to cooperate in a search does not, by itself, signify an
intent to use a weapon.� Indeed, Babb's initial response to defendant's evasive
behavior was itself reasonable:� Babb reasonably was concerned that defendant
was carrying a weapon, and defendant did not permit Babb to resolve his
concern, so Babb handcuffed defendant to assure that he could do so.�
Handcuffing or otherwise restraining defendant for the limited purpose of
carrying out the patdown was permissible.� Had Babb thereafter simply conducted
the patdown, all would have been well. �But Babb instead chose a more invasive
course.

On this record, that choice was not
permissible.� Defendant did not appear to reach for his pockets and his hands
were visible during the entire encounter.� He did not otherwise threaten Babb
or anyone else.� Quite simply, there is nothing in the record that distinguishes
the circumstances in this case from any case in which a police officer has familiar
grounds for a reasonable concern that the person he or she has stopped might be
armed.� And, as we already have indicated, such grounds and such a suspicion
justify a patdown of a suspect's exterior clothing for weapons, but they are
insufficient to justify the more intrusive search that Babb carried out in this
case.� The Court of Appeals was correct in so holding.

The decision of the Court of Appeals
is affirmed.� The judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.

1.Shortly
after he arrested defendant, Babb discovered that the burglar alarm had been a
false one.� Accordingly, the only charges brought against defendant involved
his possession of the controlled substance found in his pocket.

2.The
dissent concluded that the search was lawful.� It argued that the majority's
focus on the events that occurred after defendant was handcuffed was too
narrow, and that the proper focus was on the totality of the circumstances at
the time when Babb determined that defendant posed an immediate threat.� Rudder,
219 Or App at 440 (Wollheim, J., dissenting).

"(1) A peace officer may frisk a stopped
person for dangerous or deadly weapons if the officer reasonably suspects that
the person is armed and dangerous to the officer or other persons present.

"(2) If, in the course of the frisk, the
peace officer feels an object which the peace officer reasonably suspects is a
dangerous or deadly weapon, the peace officer may take such action as is
reasonably necessary to take possession of the weapon."��

For purposes
of the statute, a "frisk" is an "external patting of a person's
outer clothing."� ORS 131.605(3).

"A court may not exclude relevant and
otherwise admissible evidence in a criminal action on the grounds that it was
obtained in violation of any statutory provision unless exclusion of the
evidence is required by:

"(1) The United States Constitution or the
Oregon Constitution;

"(2) The rules of evidence governing
privileges and the admission of hearsay; or

5.Although
this court's cases heretofore have not expressly discussed that principle, we
think it is implicit in them.� See, e.g.,State v. Cocke, 334 Or
1, 8, 45 P3d 109 (2002) (police officers' generalized concern that persons who
posed threat of harm might be in building might justify protective sweep of
arrestee's apartment but not of defendant's separate apartment); State v.
Hoskinson, 320 Or 83, 87-88, 879 P2d 180 (1994) (when defendant was
arrested for driving while suspended, police officer's generalized concern that
his wallet might contain weapon or other means of escape did not justify search
of wallet).�

7.State
v. Ehly, 317 Or 66, 854 P2d 421 (1993) is illustrative of what can
suffice.� In Ehly, this court held that police officers were justified
in searching defendant's gym bag for weapons as a safety precaution, although
he was not under arrest at the time of the search.� We concluded that the
police officers reasonably could have believed that defendant was reaching for
a gun in the bag (not merely that he might be carrying one).� We based
that conclusion on the facts that that the police officers knew that the
defendant had prior felony convictions and was a methamphetamine user, that he
appeared to be under the influence of methamphetamine, that they had seen a
known associate of defendant's, whom they knew to carry automatic weapons,
leave the vicinity moments before the encounter with defendant, and that
defendant had his hands in a bag the contents of which he appeared to be hiding
and which could have contained a firearm.